The National Labor Relations Board's (NLRB) decision of May 28, removing
the ability of tribal nations to keep labor unions out of Indian-owned
businesses, has created an opportunity for indigenous sovereignty to be
either strengthened or weakened. It all depends on how tribal governments
A little background: Formed by Congress in 1935, the NLRB was a New Deal
agency designed to support workers' rights to organize. The agency was
weakened in 1947 when the Taft-Hartley Act removed the NLRB's power to
prosecute, leaving a basic judicial function that worked on two levels: 1)
to determine via secret ballot voting whether or not a group of employees
wants to form a union, and 2) to prevent unfair labor practices by
employers or unions. Regulating the process of collective bargaining
between workers and owners, the NLRB basically became a court of appeals
for labor disputes.
For the past three decades the NLRB has unofficially held that Indian
businesses are exempt from federal jurisdiction. May's decision against.
San Manuel Band Bingo and Casino and Yukon Kuskokwim Health Corporation
reversed that position, enabling the NLRB to exercise jurisdiction over
tribal businesses. More to the point, it signaled a new era in labor law,
legalizing the formation of unions in Indian country.
Is this the end of tribal sovereignty as we know it? The National Congress
of American Indians might assume as much, given the resolution NCAI passed
in 1999 condemning "efforts in any state to have labor union issues forced
upon tribes" (NCAI Res. VAN-99-015). More recently, this newspaper has
argued that the 2004 NLRB ruling "strikes at the seat of American Indian
power and expresses disdain for tribal governments throughout Indian
country" (Vol. 24, Iss. 2).
True enough, there is a troubling aspect to the NLRB's sudden assertion of
jurisdiction over Indian affairs. In effect, it now treats unfair labor
practices like major felonies, granting the feds ultimate say-so in the
realm of labor law. In that sense, the ruling might seem to hearken back to
the Major Crimes Act of 1885, when Congress decided that criminal cases
were best handled in a justice system more "civilized" than the traditional
practices of "savages." At any rate, there's no denying that the ruling
presently appears to be another assertion of U.S. power over Native people:
That is, a weakening of sovereignty.
On the other hand, it's important to remember exactly what this ruling is
designed to uphold: The basic right of workers to form unions. Unions, not
genocide. We're not talking about who will handle Crow Dog's murder of
Spotted Tail, or what language the people will speak, or what form of
spirituality will reign, or who owns the land. This decision is simply
about the right of employees to form a counterweight to management in order
to resist exploitation and injustice. Anyone who has ever worked for tribal
enterprises knows very well that such things do exist; yes, even in Indian
country. Since many tribal employees are tribal members, wouldn't the
protection of labor rights be a good thing for Native people?
That point will likely be lost amidst the upcoming barrage of predictable
objections. "But we treat our employees well!" So says every employer faced
with unionization. "There's no need for a union here!" If that's really
true, it won't be organized. "Unions aren't the Indian way!" Tell that to
Rigoberta Menchu, or the Zapatistas, or members of the powerful indigenous
movement currently organizing in Bolivia.
There are two primary reasons why unionization is indeed "the Indian way."
First, there was no Indian equivalent to labor exploitation - the ultimate
form being slavery - until well after contact with the whites. As the
historian Theda Perdue has argued, "because most Native peoples lived at
the subsistence level and placed no premium on the accumulation of material
wealth [Indians] did not depend on slave labor, nor did they value it."
Likewise, there were no "wages," no "laborers," no "profit" extracted from
the surplus value created by "employees." What Indians valued was the
sustainable and humanizing ethic of the commons: Sharing, cooperating,
bartering and community.
Second, in traditional Indian cultures there has always been a premium
placed upon the twin values of collective decision-making and third-party
mediation. From councils to clan societies, the power to decide has always
been understood to inhere in the people, not in a "boss," and traditional
structures existed to support the balance of power. Individual leaders
remained as such only as long as collectivities allowed it; and disputes
were never handled by brute force, but through third-party mediations (for
instance, among the Ojibwe, through the Bullhead Clan). Undergirding this
entire system was a strong belief in human rationality, the power of
communication, and the virtue of negotiation. It was understood that
disagreements will arise, but that wasn't something to fear; it was
something to handled collectively through established procedures in a
context of balanced power.
Perhaps our indigenous brothers and sisters to the south remember these
values and practices better than we do, but that doesn't mean we can't
revive them. Obviously, they will go by different names today. "Union" is
the word most people use to describe a collectivity of workers;
"arbitration" is a term for the mediation of disputes; and "empowerment" is
often held to be the opposite of "exploitation." Say them a few times, and
they start sounding like Indian words.
Affirming labor rights as an Indian value would be an act of sovereignty
sure to receive the glowing admiration of peoples everywhere - not to
mention Indian workers at home. But at very least, as nations we need to
honor the United Nations Universal Declaration of Human Rights, Article 23
of which plainly states: "Everyone has the right to form and to join trade
unions for the protection of his interests."
It's an internationally recognized human right. What sort of nations are we
- the kind that observes human rights or the type that flouts them?
Still, there remains the vexing problem of the NLRB: Do we really need the
feds telling us how to manage labor disputes? Perhaps our best bet would be
to head them off at the pass and develop even stronger labor laws and
worker protections - that is, stronger unions - than what the Americans
currently enjoy. Make Indian enterprises the envy of workers everywhere.
Get involved with the International Labor Organization (which has been
reaching out to indigenous peoples for decades) and influence the global
labor agenda. Acting both locally and globally, in the interest of justice,
would do more than eventually make the NLRB irrelevant. It just might
transform that nagging sense of having been hoodwinked once again into an
exercise of real sovereignty.
Scott Lyons, Leech Lake Ojibwe, is assistant professor of Writing and
Rhetoric at Syracuse University, where he also teaches Native American